FOIA News: FOIAing the Trump Administration: What's going on at the EPA?

FOIAing the Trump Administration: What's going on at the EPA?

Frank Matt, MuckRock, Nov. 28, 2017

The Environmental Protection Agency last week pledged to clear out its backlog of FOIA requests from the Obama administration, but the agency is at the same time experiencing a glut of new requests. This week, we take a close look at the notable successes and frustrations of FOIAing Trump’s EPA.

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FOIAing Trump’s EPA

Scott Pruitt’s EPA released a statement last week pledging to make a dent in the agency’s significant backlog of requests. The EPA estimates it can return records for the majority of the approximately 600 remaining requests that were filed prior to 2017 by the end of the calendar year. The oldest outstanding request for EPA documents from a MuckRock user was filed in 2015.

While this is undoubtedly great news for requesters, the statement specified that the redoubled effort would focus on requests made prior to Trump taking office. Since Trump took office, the EPA has received a substantial increase in FOIA requests and lawsuits. Many requesters have expressed frustration with the EPA’s handling of this FOIA wave, reporting yearlong estimated waits for records and slow responses to status questions.

Read more here.

FOIA News: Is FOIA actually hurting democracy?

Is FOIA actually hurting democracy?

Article Review: David Pozen, Freedom of Information Beyond the Freedom of Information Act, 165 U. Pa. L. Rev. 1097 (2017)

Margaret Kwoka, Administrative Law JOTWELL, Nov. 28, 2017

The literature on the Freedom of Information Act is replete with familiar claims about FOIA’s shortcomings. It takes too long to get a response. Agencies over-withhold records. The exemptions to mandatory disclosure are too broad. Congress fails to adequately fund FOIA offices. Judicial remedies are difficult to pursue and often unavailing. And as I have argued, FOIA is overtaken by commercial and individual uses that do not promote democratic accountability. But rarely does scholarship in this area provide a compelling critique of the underlying premise of FOIA: that the Act, if functioning as envisioned, promotes the ideal of democratic accountability.

David Pozen’s Freedom of Information Beyond the Freedom of Information Act has compellingly questioned this fundamental assumption, giving me more pause than anything else I have read in quite some time. In essence, Pozen argues that FOIA acts as a regressive, not a progressive, tool, hobbling the administrative state in its missions to protect the public’s health, safety, and opportunities, all while rubber stamping the excess of secrecy that characterizes the national security state where transparency may be most needed.

Read more here.

FOIA News: Travel ban case bogged down by voluminous records

Judge Frustrated With DHS Response To Travel Ban FOIA

By Bryan Koenig, Law360, Nov. 28, 2017

A D.C. federal judge took the U.S. Department of Homeland Security to task during a status conference Tuesday, admonishing the government for its “unacceptable” responsiveness to a Freedom of Information Act suit related to allegedly discriminatory policies targeting Muslims for searches following the Trump administration’s immigration ban.

U.S. District Judge Tanya S. Chutkan said that while she appreciates the heavy burden the government faces under a bevy of FOIA document requests and myriad lawsuits, that doesn’t excuse DHS’s apparent failure “to meaningfully negotiate” with public interest group Muslim Advocates. 

Read more here (subscription required).

FOIA News: "The Government Attic" publishes NSA's grammar advice columns

Here Are the NSA’s Internal Grammar Advice Columns

The intelligence agency’s Grammar Geek explained things like the difference between “affect” and “effect.”

By Louise Matsakis, Motherboard, Nov. 27, 2017

Five years ago, an employee at the US National Security Agency (NSA), wondered about how to spell the word “cancelled.”

“I looked it up in the dictionary on my desk (Yes, I still have one), and it uses one L, but notes that the two L variety is chiefly British. Why does it seem that I am the only one using 1 L, and does it really matter?” they wrote.

The question was addressed to the Grammar Geek, an advice columnist that provided intelligence officers with writing tips. The column was published in SIDtoday, an internal newsletter distributed to a division of the agency called the Signals Intelligence Directorate. The Government Attic, a website that publishes documents released through Freedom of Information Act requests (FOIAs), published 29 editions of Grammar Geek dating back to 2012 on Monday. It’s not clear whether it obtained every edition in existence (the NSA says some information was withheld).

Read more here.

Q&A: A New York state of mind

Q.  I am seeking e-mails sent or received through a State University of New York account that meet certain specific parameters. Generally speaking, they would include financial arrangements, including research funding, made between a retired employee and employees or representatives of outside corporations or organizations organizations.  Are you aware of any state-level litigation that has addressed this issue?

A.  Not offhand, though the general issue of what constitutes a public or agency records is frequently litigated.  In that respect, the mode of communication is a less significant factor than the content and purpose of the communication.  Thus, business-related emails sent through private accounts are more likely to be considered agency records, and personal emails sent through agency accounts are more likely to be considered non-agency records.  If the retired employee in your scenario was acting on his own behalf rather than on behalf of the university, I do not believe the employee's mere use of a university email account would obligate the university to search for the records you seek.

If you would like to explore this matter further, you might wish to browse the advisory opinions of the New York Department of State Committee on Open Government or contact the committee's director.   

FOIA News: FOIA Advisor earns ABA Journal honors

FOIA ADVISOR CHOSEN AS ONE OF THE ABA JOURNAL’S WEB 100

November 27, 2017

Editors of the ABA Journal have selected FOIA Advisor to the 2017 ABA Journal Web 100 as one of the 100 best digital media for a legal audience.

Editors have renamed the annual list the Web 100 to honor not only legal blogs, but also podcasts and social media. In addition, the magazine has added five more bloggers to its Blawg Hall of Fame—featuring the very best law blogs, known for their untiring ability to craft high-quality, engaging posts sometimes on a daily basis.

“Since 2007, the ABA Journal has helped shine a light on the stunning breadth of legal topics and voices to found in the legal blogosphere,” Editor and Publisher Molly McDonough said. “Journal editors have selected yet another stellar list of blogs, while recognizing the contributions of podcasts and social media. We hope you’ll find legal information sources in this list that are completely new to you.”

The FOIA Advisor staff is grateful to the ABA Journal for this recognition and it looks forward to serving the FOIA community for many more years to come.

About the ABA Journal:

The ABA Journal is the flagship magazine of the American Bar Association, and it is read by half of the nation’s 1.1 million lawyers every month. It covers the trends, people and finances of the legal profession from Wall Street to Main Street to Pennsylvania Avenue. ABAJournal.com features breaking legal news updated as it happens by staff reporters throughout every business day, a directory of more than 4,000 lawyer blogs, and the full contents of the magazine.

FOIA News: Cause of Action Institute Obtains EPA Emails on Use of Encrypted Messaging Apps

Investigation Update: EPA Employees’ Use of an Encrypted Messaging App to Thwart Transparency and Fight the White House

By Ryan Mulvey, Cause of Action Institute, Nov. 27, 2017

To date, CoA Institute’s investigation has unearthed previously undisclosed information about the Signal scandal and the EPA’s efforts to address allegations of legal wrongdoing.  In response to our first FOIA lawsuit, the EPA acknowledged that there was an “open law enforcement” investigation and, therefore, many of the records at issue would be withheld in full.  The EPA eventually changed its position on this matter and released a number of partially-redacted records.  Those records corroborate the alarming facts reported in the media and reveal much more.

For example, the EPA Office of Inspector General apparently opened its official investigation into the use of Signal only after reading the Washington Times report on CoA Institute’s FOIA efforts.

Read more here.

Court opinions issued Nov. 21, 2017

Nat'l Pub. Radio v. FEMA (D.D.C.) -- ordering agency to release the names of individuals who sold property through agency's flood mitigation program, as well as the addresses and sales prices of those properties, after finding that the privacy interests at stake were outweighed by the public interest in knowing whether agency was a good steward of taxpayer dollars.

Nat'l Sec. Counselors v. CIA (D.D.C.) -- ruling that plaintiff was eligible and entitled to attorney's fees with respect to certain claims from three lawsuits (as well as all costs), but reducing award for time spent on unsuccessful claims and ordering plaintiff to recalculate hourly rates based upon different fee matrix.

Summaries of all opinions issued since April 2015 available here. 

FOIA News: FSOC issues final FOIA regs

The Financial Stability Oversight Council has issued final FOIA regulations that are scheduled to be published in the Federal Register on November 24, 2017.  The agency had published an interim final rule in November 2016, which are now being revised upon further consideration and following public comments.

Court opinion issued Nov. 20, 2017

Wallick v. Agric. Mktg. Serv. (D.D.C.) -- finding that:  (1) agency reasonably interpreted the scope of plaintiff's request to be limited to its original application for certification, as opposed to applications for recertification and related audits; (2) agency failed to demonstrate that it performed reasonable search for adequate records; and (3) agency improperly withheld disputed sentence pursuant to deliberative process privilege, and agency was precluded from withholding it as non-responsive.

Summaries of all opinions issued since April 2015 available here.